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INTER-AMERICAN COURT OF HUMAN RIGHTS supplementary information received subsequently, Manfredo Velásquez, a

student at the National Autonomous University of Honduras, "was violently
VELASQUEZ RODRIGUEZ CASE detained without a warrant for his arrest by members of the National Office of
Investigations (DNI) and G-2 of the Armed Forces of Honduras." The
JUDGMENT OF JULY 29, 1988 detention took place in Tegucigalpa on the afternoon of September 12, 1981.
According to the petitioners, several eyewitnesses reported that Manfredo
In the Velásquez Rodríguez case, Velásquez and others were detained and taken to the cells of Public Security
Forces Station No. 2 located in the Barrio El Manchén of Tegucigalpa, where
The Inter-American Court of Human Rights, composed of the he was "accused of alleged political crimes and subjected to harsh
following judges: interrogation and cruel torture." The petition added that on September 17,
Rafael Nieto-Navia, President 1981, Manfredo Velásquez was moved to the First Infantry Battalion, where
Héctor Gros Espiell, Vice President the interrogation continued, but that he police and security forces denied that
Rodolfo E. Piza E., Judge he had been detained.
Thomas Buergenthal, Judge
Pedro Nikken, Judge 4. After transmitting the relevant parts of the petition to the
Héctor Fix-Zamudio, Judge Government, the Commission, on various occasions, requested information
Rigoberto Espinal Irías, Judge ad hoc on the matter. Since the Commission received no reply, it applied Article 42
(formerly 39) of its Regulations and presumed "as true the allegations
Also present: contained in the communication of October 7, 1981 concerning the detention
Charles Moyer, Secretary and possible disappearance of Angel Manfredo Velásquez Rodríguez in the
Manuel Ventura, Deputy Secretary Republic of Honduras" and pointed out to the Government "that such acts
are most serious violations of the right to life (Art. 4) and the right to personal
delivers the following judgment pursuant to Article 44 (1) of its Rules of liberty (Art. 7) of the American Convention" (Resolution 30/83 of October 4,
Procedure (hereinafter "the Rules of Procedure") in the instant case 1983).
submitted by the Inter-American Commission on Human Rights against the
State of Honduras. 5. On November 18, 1983, the Government requested
reconsideration of Resolution 30/83 on the grounds that domestic remedies
1. The Inter-American Commission on Human Rights (hereinafter had not been exhausted, that the National Office of Investigations had no
"the Commission") submitted the instant case to the Inter-American Court of knowledge of the whereabouts of Manfredo Velásquez, that the Government
Human Rights (hereinafter "the Court") on April 24, 1986. It originated in a was making every effort to find him, and that there were rumors that
petition (No. 7920) against the State of Honduras (hereinafter "Honduras" or Manfredo Velásquez was "with Salvadoran guerrilla groups."
"the Government"), which the Secretariat of the Commission received on
October 7, 1981. 6. On May 30, 1984, the Commission informed the Government
that it had decided, "in light of the information submitted by the Honorable
2. In submitting the case, the Commission invoked Articles 50 Government, to reconsider Resolution 30/83 and to continue its study of the
and 51 of the American Convention on Human Rights (hereinafter "the case." The Commission also asked the Government to provide information
Convention" or "the American Convention") and requested that the Court on the exhaustion of domestic legal remedies.
determine whether the State in question had violated Articles 4 (Right to
Life), 5 (Right to Humane Treatment) and 7 (Right to Personal Liberty) of the 7. On January 29, 1985, the Commission repeated its request of
Convention in the case of Angel Manfredo Velásquez Rodríguez (also known May 30, 1984 and notified the Government that it would render a final
as Manfredo Velásquez). In addition, the Commission asked the Court to decision on the case at its meeting in March 1985. On March 1 of that year,
rule that "the consequences of the situation that constituted the breach of the Government asked for a postponement of the final decision and reported
such right or freedom be remedied and that fair compensation be paid to the that it had set up an Investigatory Commission to study the matter. The
injured party or parties." Commission agreed to the Government's request on March 11, granting it
thirty days in which to present the information requested.
3. According to the petition filed with the Commission, and the
8. On October 17, 1985, the Government presented to the extension of this deadline to November 1986.
Commission the Report of the Investigatory Commission.
15. By his Order of August 29, 1986, having heard the views of the
9. On April 7, 1986, the Government provided information about parties, the President set October 31, 1986 as the deadline for the
the outcome of the proceeding brought in the First Criminal Court against Government's presentation of its submissions. The President also fixed the
those persons supposedly responsible for the disappearance of Manfredo deadlines of January 15, 1987 for the filing of the Commission's submissions
Velásquez and others. That Court dismissed the complaints "except as they and March 1, 1987 for the Government's response.
applied to General Gustavo Alvarez Martínez, because he had left the
country and had not given testimony." This decision was later affirmed by the 16. In its submissions of October 31, 1986, the Government
First Court of Appeals. objected to the admissibility of the application filed by the Commission.

10. By Resolution 22/86 of April 18, 1986, the Commission 17. On December 11, 1986, the President granted the
deemed the new information presented by the Government insufficient to Commission's request for an extension of the deadline for the presentation of
warrant reconsideration of Resolution 30/83 and found, to the contrary, that its submissions to March 20, 1987 and extended the deadline for the
"all evidence shows that Angel Manfredo Velásquez Rodríguez is still missing Government's response to May 25, 1987.
and that the Government of Honduras . . . has not offered convincing proof
that would allow the Commission to determine that the allegations are not 18. In his Order of January 30, 1987, the President made clear
true." In that same Resolution, the Commission confirmed Resolution 30/83 that the application which gave rise to the instant proceeding should be
and referred the matter to the Court. deemed to be the Memorial provided for in Article 30(3) of the Rules of
Procedure. He also specified that the deadline of March 20, 1987 granted to
I the Commission was the time limit set forth in Article 27(3) of the Rules for
11. The Court has jurisdiction to hear the instant case. Honduras the presentation of its observations and conclusions on the preliminary
ratified the Convention on September 8, 1977 and recognized the objections raised by the Government. The President, after consulting the
contentious jurisdiction of the Court, as set out in Article 62 of the parties, ordered a public hearing on June 15, 1987 for the presentation of
Convention, on September 9, 1981. The case was submitted to the Court by oral arguments on the preliminary objections and left open the time limits for
the Commission pursuant to Article 61 of the Convention and Article 50 (1) submissions on the merits, pursuant to the above-mentioned article of the
and 50 (2) of the Regulations of the Commission. Rules of Procedure.

II 19. By note of March 13, 1987, the Government informed the
12. The instant case was submitted to the Court on April 24, 1986. Court that because the Order of January 30, 1987 is not restricted to matters
On May 13, 1986, the Secretariat of the Court transmitted the application to of mere procedure nor to the determination of deadlines, but rather involves
the Government, pursuant to Article 26 (1) of the Rules of Procedure. the interpretation and classification of the submissions (the Government)
considers it advisable, pursuant to Article 25 of the Statute of the Court and
13. On July 23, 1986, Judge Jorge R. Hernández Alcerro informed Article 44(2) of its Rules of Procedure, for the Court to affirm the terms of the
the President of the Court (hereinafter "the President") that, pursuant to President's Order of January 30, 1987, in order to avoid further confusion
Article 19 (2) of the Statute of the Court (hereinafter "the Statute"), he had between the parties. As these are the first contentious cases submitted to
"decided to recuse (him)self from hearing the three cases that . . . were the Court, it is especially important to ensure strict compliance with and the
submitted to the Inter-American Court." The President accepted the correct application of the procedural rules of the Court.
disqualification and, by note of that same date, informed the Government of
its right to appoint a judge ad hoc under Article 10 (3) of the Statute. The 20. In a motion contained in its observations of March 20, 1987,
Government named Rigoberto Espinal Irías to that position by note of August the Commission asked the President to rescind paragraph 3 of his Order of
21, 1986. January 30, 1987 in which he had set the date for the public hearing. The
Commission also observed that "in no part of its Memorial had the
14. In a note of July 23, 1986, the President confirmed a Government of Honduras presented its objections as preliminary objections."
preliminary agreement that the Government present its submissions by the In its note of June 11, 1987, the Government did however refer to its
end of August 1986. On August 21, 1986, the Government requested the objections as "preliminary objections."
arise, to admit or exclude evidence that has been offered or may be
21. By Resolution of June 8, 1987, the Court affirmed the offered, to order the filing of expert or other documentary evidence
President's Order of January 30, 1987, in its entirety. that may be received and, in consultation with the parties, to set the
date of the hearing or hearings on the merits at which evidence shall
22. The hearing on the preliminary objections raised by the be presented, the testimony of witnesses and any experts shall be
Government took place on June 15, 1987. Representatives of the received, and at which the final arguments shall be heard.
Government and the Commission participated in this hearing.
4. To instruct the President to arrange with the respective
23. On June 26, 1987, the Court delivered its judgment on the authorities for the necessary guarantees of immunity and
preliminary objections. In this unanimous decision, the Court: participation of the Agents and other representatives of the parties,
witnesses and experts, and, if necessary, the delegates of the Court.
1. Reject(ed) the preliminary objections interposed by the
Government of Honduras, except for the issues relating to the 25. In its submission of July 20, 1987, the Commission ratified and
exhaustion of the domestic legal remedies, which (were) ordered supplemented its request for oral testimony and offered documentary
joined to the merits of the case. evidence.

2. Decide(d) to proceed with the consideration of the instant 26. On August 27, 1987, the Government filed its Counter-
case. Memorial and documentary evidence. In its prayer, the Government asked
the Court to dismiss "the suit against the State of Honduras on the grounds
3. Postpone(d) its decision on the costs until such time as it that it does not find the allegations to be true and that the domestic remedies
renders judgment on the merits. of the State of Honduras have not yet been exhausted."
(Velásquez Rodríguez Case, Preliminary Objections,
Judgment of June 26, 1987. Series C No. 1). 27. In his Order of September 1, 1987, the President admitted the
testimonial and documentary evidence offered by the Commission. On
24. On that same date, the Court adopted the following decision: September 14, 1987, he also admitted the documentary evidence offered by
the Government.
1. To instruct the President, in consultation with the parties, to
set a deadline no later than August 27, 1987 for the Government to 28. The Court held hearings on the merits and heard the final
submit its Counter-Memorial on the merits and offer its evidence, arguments of the parties from September 30 to October 7, 1987.
with an indication of the facts that each item of evidence is intended
to prove. In its offer of proof, the Government should show how, There appeared before the Court
when and under what circumstances it wishes to present the
evidence. a) for the Government of Honduras:
Edgardo Sevilla Idiáquez, Agent
2. Within thirty days of the receipt of the submission of the Ramón Pérez Zúñiga, Representative
Government, the Commission must ratify in writing the request of Juan Arnaldo Hernández, Representative
proof already made, without prejudice to the possibility of amending Enrique Gómez, Representative
or supplementing what has been offered. The Commission should Rubén Darío Zepeda, Adviser
indicate the facts that each item of evidence is intended to prove and Angel Augusto Morales, Adviser
how, when and under what circumstances it wishes to present the Olmeda Rivera, Adviser
evidence. As soon as possible after receiving the Government's Mario Alberto Fortín, Adviser
submission referred to in paragraph one, the Commission may also Ramón Rufino Mejía, Adviser
supplement or amend its offer of proof.
b) for the Inter-American Commission on Human Rights:
3. To instruct the President, without prejudice to a final decision Gilda M. C. M. de Russomano, President, Delegate
being taken by the Court, to decide preliminary matters that might Edmundo Vargas Carreño, Executive Secretary, Delegate
Claudio Grossman, Adviser José Isaías Vilorio, policeman
Juan Méndez, Adviser
Hugo Muñoz, Adviser
José Miguel Vivanco, Adviser 29. After having heard the witnesses, the Court directed the
submission of additional evidence to assist it in its deliberations. Its Order of
c) Witnesses presented by the Commission to testify as to October 7, 1987 reads as follows:
"whether between the years 1981 and 1984 (the period in which Manfredo
Velásquez disappeared) there were numerous cases of persons who were A. Documentary Evidence
kidnapped and who then disappeared, and whether these actions were 1. To request the Government of Honduras to provide the
imputable to the Armed Forces of Honduras and enjoyed the acquiescence organizational chart showing the structure of Battalion 316 and its
of the Government of Honduras:" position within the Armed Forces of Honduras.

Miguel Angel Pavón Salazar, Alternate Deputy B. Testimony
Ramón Custodio López, surgeon 1. To call as a witnesses, Marco Tulio Regalado and Alexander
Virgilio Carías, economist Hernández, members of the Armed Forces of Honduras.
Inés Consuelo Murillo, student
Efraín Díaz Arrivillaga, Deputy C. Reiteration of a Request
Florencio Caballero, former member of the Armed Forces 1. To the Government of Honduras to establish the
whereabouts of José Isaías Vilorio and, once located, to call him as
d) Witnesses presented by the Commission to testify as to a witness.
"whether between the years 1981 and 1984 effective domestic
remedies existed in Honduras to protect those persons who were 30. By the same Order, the Court set December 15, 1987 as the
kidnapped and who then disappeared in actions imputable to the deadline for the submission of documentary evidence and decided to hear
Armed Forces of Honduras:" the oral testimony at its January session.

Ramón Custodio López, surgeon 31. In response to that Order, on December 14, 1987 the
Virgilio Carías, economist Government: a) with respect to the organizational structure of Battalion 316,
Milton Jiménez Puerto, lawyer requested that the Court receive the testimony of its Commandant in a
Inés Consuelo Murillo, student closed hearing "because of strict security reasons of the State of Honduras";
René Velásquez Díaz, lawyer b) requested that the Court hear the testimony of Alexander Hernández and
César Augusto Murillo, lawyer Marco Tulio Regalado "in the Republic of Honduras, in a manner to be
José Gonzalo Flores Trejo, shoemaker decided by the Court and in a closed hearing to be set at an opportune time .
. . because of security reasons and because both persons are on active duty
e) Witnesses presented by the Commission to testify on in the Armed Forces of Honduras"; and c) reported that José Isaías Vilorio
specific facts related to this case: was "working as an administrative employee of the National Office of
Investigations, a branch of the Public Security Forces, in the city of
Leopoldo Aguilar Villalobos, advertising agent Tegucigalpa."
Zenaida Velásquez Rodríguez, social worker
32. By note of December 24, 1987, the Commission objected to
f) The following witnesses offered by the Commission did not hearing the testimony of members of the Honduran military in closed
appear at these hearings: session. This position was reiterated by note of January 11, 1988.

Leónidas Torres Arias, former member of the Armed Forces 33. On the latter date, the Court decided to receive the testimony
Linda Drucker, reporter of the members of the Honduran military at a closed hearing in the presence
José María Palacios, lawyer of the parties.
Mauricio Villeda Bermúdez, lawyer
34. Pursuant to its Order of October 7, 1987 and its decision of . . . and the faithful compliance with the Convention...."
January 11, 1988, the Court held a closed hearing on January 20, 1988,
which both parties attended, at which it received the testimony of persons 40. By note of January 11, 1988, the Commission informed the
who identified themselves as Lt. Col. Alexander Hernández and Lt. Marco Court of the death of José Isaías Vilorio, which occurred on January 5, 1988
Tulio Regalado Hernández. The Court also heard the testimony of Col. at 7:15 a.m. The Court had summoned him to appear as a witness on
Roberto Núñez Montes, Head of the Intelligence Services of Honduras. January 18, 1988. He was killed "on a public thoroughfare in Colonia San
Miguel, Comayaguela, Tegucigalpa, by a group of armed men who placed
35. On January 22, 1988, the Government submitted a brief the insignia of a Honduran guerrilla movement known as Cinchonero on his
prepared by the Honduran Bar Association on the legal remedies available in body and fled in a vehicle at high speed."
cases of disappeared persons. The Court had asked for this document in
response to the Government's request of August 26, 1987. 41. On January 15, 1988, the Court was informed of the
assassinations of Moisés Landaverde and Miguel Angel Pavón which had
36. On July 7, 1988, the Commission responded to a request of occurred the previous evening in San Pedro Sula. Mr. Pavón had testified
the Court concerning another case before the Court (Fairén Garbi and Solís before the Court on September 30, 1987 as a witness in this case. Also on
Corrales Case). In its response, the Commission included some "final January 15, the Court adopted the following provisional measures under
observations" on the instant case. Article 63 (2) of the Convention:

37. By decision of July 14, 1988, the President refused to admit 1. That the Government of Honduras adopt, without delay, such
the "final observations" because they were untimely and because "reopening measures as are necessary to prevent further infringements on the
the period for submissions would violate the procedure opportunely basic rights of those who have appeared or have been summoned to
established and, moreover, would seriously affect the procedural equilibrium do so before this Court in the "Velásquez Rodríguez," "Fairén Garbi
and equality of the parties." and Solís Corrales" and "Godínez Cruz" cases, in strict compliance
with the obligation of respect for and observance of human rights,
38. The following non-governmental organizations submitted briefs under the terms of Article 1 (1) of the Convention.
as amici curiae: Amnesty International, Association of the Bar of the City of
New York, Lawyers Committee for Human Rights and Minnesota Lawyers 2. That the Government of Honduras also employ all means
International Human Rights Committee. within its power to investigate these reprehensible crimes, to identify
the perpetrators and to impose the punishment provided for by the
III domestic law of Honduras.
39. By note of November 4, 1987, addressed to the President of
the Court, the Commission asked the Court to take provisional measures
under Article 63 (2) of the Convention in view of the threats against the 42. After it had adopted the above Order of January 15, the Court
witnesses Milton Jiménez Puerto and Ramón Custodio López. Upon received a request from the Commission, dated the same day, that the Court
forwarding this information to the Government of Honduras, the President take the necessary measures to protect the integrity and security of those
stated that he "does not have enough proof to ascertain which persons or persons who had appeared or would appear before the Court.
entities might be responsible for the threats, but he strongly wishes to
request that the Government of Honduras take all measures necessary to 43. On January 18, 1988, the Commission asked the Court to
guarantee the safety of the lives and property of Milton Jiménez and Ramón adopt the following complementary provisional measures:
Custodio and the property of the Committee for the Defense of Human
Rights in Honduras (CODEH) . . . ." The President also stated that he was 1. That the Government of Honduras inform the Court, within
prepared to consult with the Permanent Commission of the Court and, if 15 days, of the specific measures it has adopted to protect the
necessary, to convoke the Court for an emergency meeting "for taking the physical integrity of witnesses who testified before the Court as well
appropriate measures, if that abnormal situation continues." By as those persons in any way involved in these proceedings, such as
communications of November 11 and 18, 1987, the Agent of the Government representatives of human rights organizations.
informed the Court that the Honduran government would guarantee Ramón
Custodio and Milton Jiménez "the respect of their physical and moral integrity 2. That the Government of Honduras report, within that same
period, on the judicial investigations of the assassinations of José
Isaías Vilorio, Miguel Angel Pavón and Moisés Landaverde. c. the investigations of the assassinations, including forensic
reports, and the actions that are proposed to be taken within the
3. That the Government of Honduras provide the Court, within judicial system of Honduras to punish those responsible.
that same period, the public statements made regarding the
aforementioned assassinations and indicate where those statements 2. That the Government of Honduras adopt concrete measures
appeared. to make clear that the appearance of an individual before the Inter-
American Commission or Court of Human Rights, under conditions
4. That the Government of Honduras inform the Court, within authorized by the American Convention and by the rules of
the same period, on the criminal investigations of threats against procedure of both bodies, is a right enjoyed by every individual and
Ramón Custodio and Milton Jiménez, who are witnesses in this is recognized as such by Honduras as a party to the Convention.
This decision was delivered to the parties in Court.
5. That it inform the Court whether it has ordered police
protection to ensure the personal integrity of the witnesses who have 46. Pursuant to the Court's decision of January 19, 1988, the
testified and the protection of the property of CODEH. Government submitted the following documents on February 3, 1988:

6. That the Court request the Government of Honduras to send 1. A copy of the autopsy report on the death of Professor
it immediately a copy of the autopsies and ballistic tests carried out Miguel Angel Pavón Salazar, certified by the Third Criminal Court of
regarding the assassinations of Messrs. Vilorio, Pavón and San Pedro Sula, Department of Cortés, on January 27, 1988 and
Landaverde. prepared by forensic specialist Rolando Tábora, of that same Court.

44. That same day the Government submitted a copy of the death 2. A copy of the autopsy report on the death of Professor
certificate and the autopsy report of José Isaías Vilorio, both dated January Moisés Landaverde Recarte, certified by the above Court on the
5, 1988. same date and prepared by the same forensic specialist.

45. On January 18, 1988, the Court decided, by a vote of six to 3. A copy of a statement made by Dr. Rolando Tábora, forensic
one, to hear the parties in a public session the following day regarding the specialist, as part of the inquiry undertaken by the above Court into
measures requested by the Commission. After the hearing, taking into the deaths of Miguel Angel Pavón and Moisés Landaverde Recarte,
account "Articles 63 (2), 33 and 62 (3) of the American Convention on and certified by that Court on January 27, 1988.
Human Rights, Articles 1 and 2 of the Statute of the Court and Article 23 of
its Rules of Procedure and its character as a judicial body and the powers 4. A copy of the inquiry into threats against the lives of Ramón
which derive therefrom," the Court unanimously decided, by Order of Custodio and Milton Jiménez, conducted by the First Criminal Court
January 19, 1988, on the following additional provisional measures: of Tegucigalpa, Central District, and certified by that Court on
February 2, 1988.
1. That the Government of Honduras, within a period of two
weeks, inform this Court on the following points: In the same submission, the Government stated that:

a. the measures that have been adopted or will be adopted The content of the above documents shows that the Government of
to protect the physical integrity of, and to avoid irreparable harm to, Honduras has initiated a judicial inquiry into the assassinations of Miguel
those witnesses who have testified or have been summoned to do Angel Pavón Salazar and Moisés Landaverde Recarte, under the procedures
so in these cases. provided for by Honduran law.

b. the judicial investigations that have been or will be Those same documents show, moreover, that the projectiles were
undertaken with respect to threats against the aforementioned not removed from the bodies for ballistic study because of the opposition of
individuals. family members, which is why no ballistic report was submitted as requested.
evidence on this point. The Government, in turn, submitted some
47. The Government also requested an extension of the deadline documentary evidence, including examples of writs of habeas corpus
ordered above "because, for justifiable reasons, it has been impossible to successfully brought on behalf of some individuals (infra 120 (c)). The
obtain some of the information." Upon instructions from the President, the Government also stated that this remedy requires identification of the place
Secretariat informed the Government on the following day that it was not of detention and of the authority under which the person is detained.
possible to extend the deadline because it had been set by the full Court.
53. In addition to the writ of habeas corpus, the Government
48. By communication of March 10, 1988, the Inter-Institutional mentioned various remedies that might possibly be invoked, such as appeal,
Commission of Human Rights of Honduras, a governmental body, made cassation, extraordinary writ of amparo, ad effectum videndi, criminal
several observations regarding the Court's decision of January 15, 1988. On complaints against those ultimately responsible and a presumptive finding of
the threats that have been made against some witnesses, it reported that death.
Ramón Custodio "refused to bring a complaint before the proper courts and
that the First Criminal Court of Tegucigalpa, Department of Morazán, had 54. The Honduran Bar Association in its brief (supra 35) expressly
initiated an inquiry to determine whether there were threats, intimidations or mentioned the writ of habeas corpus, set out in the Law of Amparo, and the
conspiracies against the lives of Dr. Custodio and Milton Jiménez, and had suit before a competent court "for it to investigate the whereabouts of the
duly summoned them to testify and to summit any evidence," but they failed person allegedly disappeared."
to appear. It added that no Honduran official "has attempted to intimidate,
threaten or restrict the liberty of any of the persons who testified before the 55. The Commission argued that the remedies mentioned by the
Court . . . who enjoy the same guarantees as other citizens." Government were ineffective because of the internal conditions in the
country during that period. It presented documentation of three writs of
49. On March 23, 1988 the Government submitted the following habeas corpus brought on behalf of Manfredo Velásquez that did not
documents: produce results. It also cited two criminal complaints that failed to lead to the
identification and punishment of those responsible. In the Commission's
1. Copies of the autopsies performed on the bodies of Miguel opinion, those legal proceedings exhausted domestic remedies as required
Angel Pavón Salazar and Moisés Landaverde, certified by the by Article 46 (1) (a) of the Convention.
Secretariat of the Third Criminal Court of the Judicial District of San
Pedro Sula. 56. The Court will first consider the legal arguments relevant to the
question of exhaustion of domestic remedies and then apply them to the
2. The ballistic report on the shrapnel removed from the bodies case.
of those persons, signed by the Director of the Medical-Legal
Department of the Supreme Court of Justice. 57. Article 46 (1) (a) of the Convention provides that, in order for a
petition or communication lodged with the Commission in accordance with
IV Articles 44 or 45 to be admissible, it is necessary that the remedies under
50. The Government raised several preliminary objections that the domestic law have been pursued and exhausted in accordance with
Court ruled upon in its Judgment of June 26, 1987 (supra 16-23). There the generally recognized principles of international law.
Court ordered the joining of the merits and the preliminary objection
regarding the failure to exhaust domestic remedies, and gave the 58. The same article, in the second paragraph, provides that this
Government and the Commission another opportunity to "substantiate their requirement shall not be applicable when
contentions" on the matter (Velásquez Rodríguez Case, Preliminary
Objections, supra 23, para. 90). a. the domestic legislation of the state concerned does not
afford due process of law for the protection of the right or rights that
51. The Court will first rule upon this preliminary objection. In so have allegedly been violated;
doing, it will make use of all the evidence before it, including that presented
during the proceedings on the merits. b. the party alleging violation of his rights has been denied
access to the remedies under domestic law or has been prevented
52. The Commission presented witnesses and documentary from exhausting them; or
need not be exhausted. A norm is meant to have an effect and should not be
c. there has been unwarranted delay in rendering a final interpreted in such a way as to negate its effect or lead to a result that is
judgment under the aforementioned remedies. manifestly absurd or unreasonable. For example, a civil proceeding
specifically cited by the Government, such as a presumptive finding of death
59. In its Judgment of June 26, 1987, the Court decided, inter based on disappearance, the purpose of which is to allow heirs to dispose of
alia, that "the State claiming non-exhaustion has an obligation to prove that the estate of the person presumed deceased or to allow the spouse to
domestic remedies remain to be exhausted and that they are effective" remarry, is not an adequate remedy for finding a person or for obtaining his
(Velásquez Rodríguez Case, Preliminary Objections, supra 23, para. 88). liberty.

60. Concerning the burden of proof, the Court did not go beyond 65. Of the remedies cited by the Government, habeas corpus
the conclusion cited in the preceding paragraph. The Court now affirms that would be the normal means of finding a person presumably detained by the
if a State which alleges non-exhaustion proves the existence of specific authorities, of ascertaining whether he is legally detained and, given the
domestic remedies that should have been utilized, the opposing party has case, of obtaining his liberty. The other remedies cited by the Government
the burden of showing that those remedies were exhausted or that the case are either for reviewing a decision within an inchoate proceeding (such as
comes within the exceptions of Article 46 (2). It must not be rashly presumed those of appeal or cassation) or are addressed to other objectives. If,
that a State Party to the Convention has failed to comply with its obligation to however, as the Government has stated, the writ of habeas corpus requires
provide effective domestic remedies. the identification of the place of detention and the authority ordering the
detention, it would not be adequate for finding a person clandestinely held by
61. The rule of prior exhaustion of domestic remedies allows the State officials, since in such cases there is only hearsay evidence of the
State to resolve the problem under its internal law before being confronted detention, and the whereabouts of the victim is unknown.
with an international proceeding. This is particularly true in the international
jurisdiction of human rights, because the latter reinforces or complements the 66. A remedy must also be effective --that is, capable of producing
domestic jurisdiction (American Convention, Preamble). the result for which it was designed. Procedural requirements can make the
remedy of habeas corpus ineffective: if it is powerless to compel the
62. It is a legal duty of the States to provide such remedies, as this authorities; if it presents a danger to those who invoke it; or if it is not
Court indicated in its Judgment of June 26, 1987, when it stated: impartially applied.

The rule of prior exhaustion of domestic remedies under the 67. On the other hand, contrary to the Commission's argument,
international law of human rights has certain implications that are present in the mere fact that a domestic remedy does not produce a result favorable to
the Convention. Under the Convention, States Parties have an obligation to the petitioner does not in and of itself demonstrate the inexistence or
provide effective judicial remedies to victims of human rights violations (Art. exhaustion of all effective domestic remedies. For example, the petitioner
25), remedies that must be substantiated in accordance with the rules of due may not have invoked the appropriate remedy in a timely fashion.
process of law (Art. 8 (1)), all in keeping with the general obligation of such
States to guarantee the free and full exercise of the rights recognized by the 68. It is a different matter, however, when it is shown that remedies
Convention to all persons subject to their jurisdiction (Art. 1). (Velásquez are denied for trivial reasons or without an examination of the merits, or if
Rodríguez Case, Preliminary Objections, supra 23, para. 91). there is proof of the existence of a practice or policy ordered or tolerated by
the government, the effect of which is to impede certain persons from
63. Article 46 (1) (a) of the Convention speaks of "generally invoking internal remedies that would normally be available to others. In
recognized principles of international law." Those principles refer not only to such cases, resort to those remedies becomes a senseless formality. The
the formal existence of such remedies, but also to their adequacy and exceptions of Article 46 (2) would be fully applicable in those situations and
effectiveness, as shown by the exceptions set out in Article 46 (2). would discharge the obligation to exhaust internal remedies since they
cannot fulfill their objective in that case.
64. Adequate domestic remedies are those which are suitable to
address an infringement of a legal right. A number of remedies exist in the 69. In the Government's opinion, a writ of habeas corpus does not
legal system of every country, but not all are applicable in every exhaust the remedies of the Honduran legal system because there are other
circumstance. If a remedy is not adequate in a specific case, it obviously remedies, both ordinary and extraordinary, such as appeal, cassation, and
extraordinary writ of amparo, as well as the civil remedy of a presumptive ii. Brought by Zenaida Velásquez on February 6, 1982. No
finding of death. In addition, in criminal procedures parties may use result.
whatever evidence they choose. With respect to the cases of
disappearances mentioned by the Commission, the Government stated that iii. Brought by various relatives of disappeared persons on
it had initiated some investigations and had opened others on the basis of behalf of Manfredo Velásquez and others on July 4, 1983.
complaints, and that the proceedings remain pending until those presumed Denied on September 11, 1984.
responsible, either as principals or accomplices, are identified or
apprehended. b. Criminal Complaints

70. In its conclusions, the Government stated that some writs of i. Brought by the father and sister of Manfredo Velásquez
habeas corpus were granted from 1981 to 1984, which would prove that this before the First Criminal Court of Tegucigalpa on
remedy was not ineffective during that period. It submitted various November 9, 1982. No result.
documents to support its argument.
ii. Brought by Gertrudis Lanza González, joined by Zenaida
71. In response, the Commission argued that the practice of Velásquez, before the First Criminal Court of Tegucigalpa
disappearances made exhaustion of domestic remedies impossible because against various members of the Armed Forces on April 5,
such remedies were ineffective in correcting abuses imputed to the 1984. The court dismissed this proceeding on January 16,
authorities or in causing kidnapped persons to reappear. 1986, although it left open the complaint with regard to
General Gustavo Alvarez Martínez, who was declared a
72. The Commission maintained that, in cases of disappearances, defendant in absence (supra 9).
the fact that a writ of habeas corpus or amparo has been brought without
success is sufficient to support a finding of exhaustion of domestic remedies 75. Although the Government did not dispute that the above
as long as the person does not appear, because that is the most appropriate remedies had been brought, it maintained that the Commission should not
remedy in such a situation. It emphasized that neither writs of habeas have found the petition admissible, much less submitted it to the Court,
corpus nor criminal complaint were effective in the case of Manfredo because of the failure to exhaust the remedies provided by Honduran law,
Velásquez. The Commission maintained that exhaustion should not be given that there are no final decisions in the record that show the contrary. It
understood to require mechanical attempts at formal procedures; but rather stated that the first writ of habeas corpus was declared void because the
to require a case-by-case analysis of the reasonable possibility of obtaining a person bringing it did not follow through; regarding the second and third, the
remedy. Government explained that additional writs cannot be brought on the same
subject, the same facts, and based on the same legal provisions. As to the
73. The Commission asserted that, because of the structure of the criminal complaints, the Government stated that no evidence had been
international system for the protection of human rights, the Government submitted and, although presumptions had been raised, no proof had been
bears the burden of proof with respect to the exhaustion of domestic offered and that the proceeding was still before Honduran courts until those
remedies. The objection of failure to exhaust presupposes the existence of guilty were specifically identified. It stated that one of the proceedings was
an effective remedy. It stated that a criminal complaint is not an effective dismissed for lack of evidence with respect to those accused who appeared
means to find a disappeared person, but only serves to establish individual before the court, but not with regard to General Alvarez Martínez, who was
responsibility. out of the country. Moreover, the Government maintained that dismissal
does not exhaust domestic remedies because the extraordinary remedies of
74. The record before the Court shows that the following remedies amparo, rehearing and cassation may be invoked and, in the instant case,
were pursued on behalf of Manfredo Velásquez: the statute of limitations has not yet run, so the proceeding is pending.

a. Habeas corpus 76. The record (infra Chapter V) contains testimony of members
of the Legislative Assembly of Honduras, Honduran lawyers, persons who
i. Brought by Zenaida Velásquez against the Public Security were at one time disappeared, and relatives of disappeared persons, which
Forces on September 17, 1981. No result. purports to show that in the period in which the events took place, the legal
remedies in Honduras were ineffective in obtaining the liberty of victims of a
practice of enforced or involuntary disappearances (hereinafter writs of habeas corpus and criminal complaints were filed, they were
"disappearance" of "disappearances"), ordered or tolerated by the ineffective or were mere formalities. The evidence offered by the
Government. The record also contains dozens of newspaper clippings which Commission was not refuted and is sufficient to reject the Government's
allude to the same practice. According to that evidence, from 1981 to 1984 preliminary objection that the case is inadmissible because domestic
more than one hundred persons were illegally detained, may of whom never remedies were not exhausted.
reappeared, and, in general, the legal remedies which the Government
claimed were available to the victims were ineffective. V
82. The Commission presented testimony and documentary
77. That evidence also shows that some individuals were captured evidence to show that there were many kidnappings and disappearances in
and detained without due process and subsequently reappeared. However, Honduras from 1981 to 1984 and that those acts were attributable to the
in some of those cases, the reappearances were not the result of any of the Armed Forces of Honduras (hereinafter "Armed Forces"), which was able to
legal remedies which, according to the Government, would have been rely at least on the tolerance of the Government. Three officers of the Armed
effective, but rather the result of other circumstances, such as the Forces testified on this subject at the request of the Court.
intervention of diplomatic missions or actions of human rights organizations.
83. Various witnesses testified that they were kidnapped,
78. The evidence offered shows that lawyers who filed writs of imprisoned in clandestine jails and tortured by members of the Armed Forces
habeas corpus were intimidated, that those who were responsible for (testimony of Inés Consuelo Murillo, José Gonzalo Flores Trejo, Virgilio
executing the writs were frequently prevented from entering or inspecting the Carías, Milton Jiménez Puerto, René Velásquez Días and Leopoldo Aguilar
places of detention, and that occasional criminal complaints against military Villalobos).
or police officials were ineffective, either because certain procedural steps
were not taken or because the complaints were dismissed without further 84. Inés Consuelo Murillo testified that she was secretly held for
proceedings. approximately three months. According to her testimony, she and José
Gonzalo Flores Trejo, whom she knew casually, were captured on March 13,
79. The Government had the opportunity to call its own witnesses 1983 by men who got out of a car, shouted that they were from Immigration
to refute the evidence presented by the Commission, but failed to do so. and hit her with their weapons. Behind them was another car which assisted
Although the Government's attorneys contested some of the points urged by in the capture. She said she was blindfolded, bound, and driven presumably
the Commission, they did not offer convincing evidence to support their to San Pedro Sula, where she was taken to a secret detention center. There
arguments. The Court summoned as witnesses some members of the she was tied up, beaten, kept nude most of the time, not fed for many days,
armed forces mentioned during the proceeding, but their testimony was and subjected to electrical shocks, hanging, attempts to asphyxiate her,
insufficient to overcome the weight of the evidence offered by the threats of burning her eyes, threats with weapons, burns on the legs,
Commission to show that the judicial and governmental authorities did not punctures of the skin with needles, drugs and sexual abuse. She admitted
act with due diligence in cases of disappearances. The instant case is such carrying false identification when detained, but ten days later she gave them
an example. her real name. She stated that thirty-six days after her detention she was
moved to a place near Tegucigalpa, where she saw military officers (one of
80. The testimony and other evidence received and not refuted whom was Second Lt. Marco Tulio Regalado Hernández), papers with an
leads to the conclusion that, during the period under consideration, although Army letterhead, and Armed Forces graduation rings. This witness added
there may have been legal remedies in Honduras that theoretically allowed a that she was finally turned over to the police and was brought before a court.
person detained by the authorities to be found, those remedies were She was accused of some twenty crimes, but her attorney was not allowed to
ineffective in cases of disappearances because the imprisonment was present evidence and there was no trial (testimony of Inés Consuelo Murillo).
clandestine; formal requirements made them inapplicable in practice; the
authorities against whom they were brought simply ignored them, or because 85. Lt. Regalado Hernández said that he had no knowledge of the
attorneys and judges were threatened and intimidated by those authorities. case of Inés Consuelo Murillo, except for what he had read in the newspaper
(testimony of Marco Tulio Regalado Hernández).
81. Aside from the question of whether between 1981 and 1984
there was a governmental policy of carrying out or tolerating the 86. The Government stated that it was unable to inform Ms.
disappearance of certain persons, the Commission has shown that although Murillo's relatives of her detention because she was carrying false
identification, a fact which also showed, in the Government's opinion, that process in 1982. He was held for ten years in a clandestine jail, without
she was not involved in lawful activities and was, therefore, not telling the charges, and was beaten and tortured before he was brought before the
whole truth. It added that her testimony of a casual relationship with José court (testimony of Milton Jiménez Puerto).
Gonzalo Flores Trejo was not credible because both were clearly involved in
criminal activities. 92. The Government affirmed that the witness was charged with
the crimes of threatening national security and possession of arms that only
87. José Gonzalo Flores Trejo testified that he and Inés Consuelo the Armed Forces were authorized to carry and, therefore, had a personal
Murillo were kidnapped together and taken to a house presumably located in interest in discrediting Honduras with his testimony.
San Pedro Sula, where his captors repeatedly forced his head into a trough
of water until he almost drowned, kept his hands and feet tied, and hung him 93. Another lawyer, who also said that he defended political
so that only his stomach touched the ground. He also declared that, detainees and who testified on Honduran law, stated that personnel of the
subsequently, in a place where he was held near Tegucigalpa, his captors Department of Special Investigations detained him a broad daylight in
covered his head with a "capucha" (a piece of rubber cut from an inner tube, Tegucigalpa on June 1, 1982, blindfolded him, took him to a place he was
which prevents a person from breathing through the mouth and nose), unable to recognize and kept him without food or water for four days. He
almost asphyxiating him, and subjected him to electric shocks. He said he was beaten and insulted. He said that he could see through the blindfold
knew he was in the hands of the military because when his blindfold was that he was in a military installation (testimony of René Velásquez Díaz).
removed in order to take some pictures of him, he saw a Honduran military
officer and on one occasion when they took him to bathe, he saw a military 94. The Government claimed that this witness made several false
barracks. He also heard a trumpet sound, orders being given and the report statements regarding the law in force in Honduras and that his testimony
of a cannon (testimony of José Gonzalo Flores Trejo). "lacks truth or force because it is not impartial and his interest is to discredit
the State of Honduras."
88. The Government argued that the testimony of the witness, a
Salvadoran national, was not credible because he attempted to convince the 95. The Court received testimony which indicated that somewhere
Court that his encounters with Inés Consuelo Murillo were of a casual nature. between 112 and 130 individuals were disappeared from 1981 and 1984. A
The Government added that both individuals were involved in illicit activities. former member of the Armed Forces testified that, according to a list in the
files of Battalion 316, the number might be 140 or 150 (testimony of Miguel
89. Virgilio Carías, who was President of the Socialist Party of Angel Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga and
Honduras, testified that he was kidnapped in broad daylight on September Florencio Caballero).
12, 1981, when 12 or 13 persons, armed with pistols, carbines and automatic
rifles, surrounded his automobile. He stated that he was taken to a secret 96. The Court heard testimony from the President of the
jail, threatened and beaten, and had no food, water or bathroom facilities for Committee for the Defense of Human Rights in Honduras regarding the
four or five days. On the tenth day, his captors gave him an injection in the existence of a unit within the Armed Forces which carried out
arm and threw him, bound, in the back of a pick-up truck. Subsequently, disappearances. According to his testimony, in 1980 there was group called
they draped him over the back of a mule and set it walking through the "the fourteen" under the command of Major Adolfo Díaz, attached to the
mountains near the Nicaraguan border, where he regained his liberty General Staff of the Armed Forces. Subsequently, this group was replaced
(testimony of Virgilio Carías). by "the ten," commanded by Capt. Alexander Hernández, and finally by
Battalion 316, a special operations group, with separate units trained in
90. The Government indicated that this witness expressly admitted surveillance, kidnapping, execution, telephone tapping, etc. The existence of
that he opposed the Honduran government. The Government also this group had always been denied until it was mentioned in a communiqué
maintained that his answers were imprecise or evasive and argued that, of the Armed Forces in September 1986 (testimony of Ramón Custodio
because the witness said he could not identify his captors, his testimony was López. See also the testimony of Florencio Caballero).
hearsay and of no evidentiary value since, in the Government's view, he had
no personal knowledge of the events and only knew of them through others. 97. Alexander Hernández, now a Lieutenant Colonel, denied
having participated in the group "the ten," having been a part of Battalion
91. A Honduran attorney, who stated that he defended political 316, or having had any type of contact with it (testimony of Alexander
prisoners, testified that Honduran security forces detained him without due Hernández).
Headquarters in Tegucigalpa (testimony of Roberto Núñez Montes).
98. The current Director of Honduran Intelligence testified that he
learned from the files of his department that in 1984 an intelligence battalion 103. The former member of the Armed Forces confirmed the
called 316 was created, the purpose of which was to provide combat existence of secret jails and of specially chosen places for the burial of those
intelligence to the 101st, 105th and 110th Brigades. He added that this executed. He also related that there was a torture group and an
battalion initially functioned as a training unit, until the creation of the interrogation group in his unit, and that he belonged to the latter. The torture
Intelligence School, to which all its training functions were gradually group used electric shock, the water barrel and the "capucha." They kept the
transferred, and that the Battalion was finally disbanded in September 1987. victims nude, without food, and threw cold water on them. He added that
He stated that there was never any group called "the fourteen" or "the ten" in those selected for execution were handed over to a group of former
the Armed Forces or security forces (testimony of Roberto Núñez Montes). prisoners, released from jail for carrying out executions, who used firearms at
first and then knives and machetes (testimony of Florencio Caballero).
99. According to testimony on the modus operandi of the practice
of disappearances, the kidnappers followed a pattern: they used automobiles 104. The current Director of Intelligence denied that the Armed
with tinted glass (which requires a special permit from the Traffic Division), Forces had secret jails, stating that it was not its modus operandi. He
without license plates or with false plates, and sometimes used special claimed that it was subversive elements who do have such jails, which they
disguises, such as wigs, false mustaches, masks, etc. The kidnappings call "the peoples' prisons." He added that the function of an intelligence
were selective. The victims were first placed under surveillance, then the service is not to eliminate or disappear people, but rather to obtain and
kidnapping was planned. Microbuses or vans were used. Some victims process information to allow the highest levels of government to make
were taken from their homes; others were picked up in public streets. On informed decisions (testimony of Roberto Núñez Montes).
one occasion, when a patrol car intervened, the kidnappers identified
themselves as members of a special group of the Armed Forces and were 105. A Honduran officer, called as a witness by the Court, testified
permitted to leave with the victim (testimony of Ramón Custodio López, that the use of violence or psychological means to force a detainee to give
Miguel Angel Pavón Salazar, Efraín Díaz Arrivillaga and Florencio Caballero). information is prohibited (testimony of Marco Tulio Regalado Hernández).

100. A former member of the Armed Forces, who said that he 106. The Commission submitted many clippings from the Honduran
belonged to Battalion 316 (the group charged with carrying out the press from 1981 to 1984 which contain information on at least 64
kidnappings) and that he had participated in some kidnappings, testified that disappearances, which were apparently carried out against ideological or
the starting point was an order given by the chief of the unit to investigate an political opponents or trade union members. Six of those individuals, after
individual and place him under surveillance. According to this witness, if a their release, complained of torture and other cruel, inhuman and degrading
decision was made to take further steps, the kidnapping was carried out by treatment. There clippings mention secret cemeteries where 17 bodies had
persons in civilian clothes using pseudonyms and disguises and carrying been found.
arms. The unit had four double-cabin Toyota pick-up trucks without police
markings for use in kidnappings. Two of the pick-ups had tinted glass 107. According to the testimony of his sister, eyewitnesses to the
(testimony of Florencio Caballero. See also testimony of Virgilio Carías). kidnapping of Manfredo Velásquez told her that he was detained on
September 12, 1981, between 4:30 and 5:00 p.m., in a parking lot in
101. The Government objected, under Article 37 of the Rules of downtown Tegucigalpa by seven heavily-armed men dressed in civilian
Procedure, to the testimony of Florencio Caballero because he had deserted clothes (one of them being First Sgt. José Isaías Vilorio), who used a white
from the Armed Forces and had violated his military oath. By unanimous Ford without license plates (testimony of Zenaida Velásquez. See also
decision of October 6, 1987, the Court rejected the challenge and reserved testimony of Ramón Custodio López).
the right to consider his testimony.
108. This witness informed the Court that Col. Leónidas Torres
102. The current Director of Intelligence of the Armed Forces Arias, who had been head of Honduran military intelligence, announced in a
testified that intelligence units do not carry out detentions because they "get press conference in Mexico City that Manfredo Velásquez was kidnapped by
burned" (are discovered) and do not use pseudonyms or automobiles without a special squadron commanded by Capt. Alexander Hernández, who was
license plates. He added that Florencio Caballero never worked in the carrying out the direct orders of General Gustavo Alvarez Martínez
intelligence services and that he was a driver for the Army General (testimony of Zenaida Velásquez).
him because he found him standing up, although the witness told the
109. Lt. Col. Hernández testified that he never received any order to Lieutenant that he had gotten up because he was tired. He added that,
detain Manfredo Velásquez and had never worked in police operations subsequently, Sgt. Carlos Alfredo Martínez, whom he had met at the bar
(testimony of Alexander Hernández). where he worked, told him they had turned Manfredo Velásquez over to
members of Battalion 316 (testimony of Leopoldo Aguilar Villalobos).
110. The Government objected, under Article 37 of the Rules of
Procedure, to the testimony of Zenaida Velásquez because, as sister of the 116. The Government asserted that the testimony of this witness "is
victim, she was a party interested in the outcome of the case. not completely trustworthy because of discrepancies that should not be
overlooked, such as the fact that he had testified that he had only been
111. The Court unanimously rejected the objection because it arrested once, in 1981, for trafficking in arms and hijacking a plane, when the
considered the fact that the witness was the victim's sister to be insufficient truth was that Honduran police had arrested him on several occasions
to disqualify her. The Court reserved the right to consider her testimony. because of his unenviable record."

112. The Government asserted that her testimony was irrelevant 117. The Commission also presented evidence to show that from
because it did not refer to the case before the Court and that what she 1981 to 1984 domestic judicial remedies in Honduras were ineffective in
related about the kidnapping of her brother was not her personal knowledge protecting human rights, especially the rights of disappeared persons to life,
but rather hearsay. liberty and personal integrity.

113. The former member of the Armed Forces who claimed to have 118. The Court heard the following testimony with respect to this
belonged to the group that carried out kidnappings told the Court that, point:
although the did not take part in the kidnapping of Manfredo Velásquez, Lt.
Flores Murillo had told him what had happened. According to this testimony, a. The legal procedures of Honduras were ineffective in
Manfredo Velásquez was kidnapped in downtown Tegucigalpa in an ascertaining the whereabouts of detainees and ensuring respect for
operation in which Sgt. José Isaías Vilorio, men using the pseudonyms their physical and moral integrity. When writs of habeas corpus were
Ezequiel and Titanio, and Lt. Flores Murillo himself, took part. The brought, the courts were slow to name judges to execute them and,
Lieutenant told him that during the struggle Ezequiel's gun went off and once named, those judges were often ignored by police authorities.
wounded Manfredo in the leg. They took the victim to INDUMIL (Military On several occasions, the authorities denied the detentions, even in
Industries) where they tortured him. They then turned him over the those in cases in which the prisoners were later released. There were no
charge of carrying out executions who, at the orders of General Alvarez, judicial orders for the arrests and the places of detention were
Chief of the Armed Forces, took him out of Tegucigalpa and killed him with a unknown. When writs of habeas corpus were formalized, the police
knife and machete. They dismembered his body and buried the remains in authorities did not present the persons named in the writs (testimony
different places (testimony of Florencio Caballero). of Miguel Angel Pavón Salazar, Ramón Custodio López, Milton
Jiménez Puerto and Efraín Díaz Arrivillaga).
114. The current Director of Intelligence testified that José Isaías
Vilorio was a file clerk of the DNI. He said he did not know Lt. Flores Murillo b. The judges named by the Courts of Justice to execute the
and stated that INDUMIL had never been used as a detention center writs did not enjoy all the necessary guarantees. Moreover, they
(testimony of Roberto Núñez Montes). feared reprisals because they were often threatened. Judges were
imprisoned on more than one occasion and some of them were
115. One witness testified that he was taken prisoner on September physically mistreated by the authorities. Law professors and lawyers
29, 1981 by five or six persons who identified themselves as members of the who defended political prisoners were pressured not to act in cases
Armed Forces and took him to the officers of DNI. They blindfolded him and of human rights violations. Only two dared bring writs of habeas
took him in a car to an unknown place, where they tortured him. On October corpus on behalf of disappeared persons and one of those was
1, 1981, while he was being held, he heard a moaning and pained voice arrested while he was filing a writ (testimony of Milton Jiménez
through a hole in the door to an adjoining room. The person identified Puerto, Miguel Angel Pavón Salazar, Ramón Custodio López, César
himself as Manfredo Velásquez and asked for help. According to the Augusto Murillo, René Velásquez Díaz and Zenaida Velásquez).
testimony of the witness, at that moment Lt. Ramón Mejía came in and hit
c. In no case between 1981 and 1984 did a writ of habeas opinion, inspections or reports.
corpus on behalf of a disappeared person prove effective. If some
individuals did reappear, this was not the result of such a legal VII
remedy (testimony of Miguel Angel Pavón Salazar, Inés Consuelo 122. Before weighing the evidence, the Court must address some
Murillo, César Augusto Murillo, Milton Jiménez Puerto, René questions regarding the burden of proof and the general criteria considered
Velásquez Díaz and Virgilio Carías). in its evaluation and finding of the facts in the instant proceeding.

VI 123. Because the Commission is accusing the Government of the
119. The testimony and documentary evidence, corroborated by disappearance of Manfredo Velásquez, it, in principle, should bear the
press clippings, presented by the Commission, tend to show: burden of proving the facts underlying its petition.

a. That there existed in Honduras from 1981 to 1984 a 124. The Commission's argument relies upon the proposition that
systematic and selective practice of disappearances carried out with the policy of disappearances, supported or tolerated by the Government, is
the assistance or tolerance of the government; designed to conceal and destroy evidence of disappearances. When the
existence of such a policy or practice has been shown, the disappearance of
b. That Manfredo Velásquez was a victims of that practice a particular individual may be proved through circumstantial or indirect
and was kidnapped and presumably tortured, executed and evidence or by logical inference. Otherwise, it would be impossible to prove
clandestinely buried by agents of the Armed Forces of Honduras, that an individual has been disappeared.
125. The Government did not object to the Commission's approach.
c. That in the period in which those acts occurred, the legal Nevertheless, it argued that neither the existence of a practice of
remedies available in Honduras were not appropriate or effective to disappearances in Honduras nor the participation of Honduran officials in the
guarantee his rights to life, liberty and personal integrity. alleged disappearance of Manfredo Velásquez had been proven.

120. The Government, in turn, submitted documents and based its 126. The Court finds no reason to consider the Commission's
argument on the testimony of three members of the Honduran Armed argument inadmissible. If it can be shown that there was an official practice
Forces, two of whom were summoned by the Court because they had been of disappearances in Honduras, carried out by the Government or at least
identified in the proceedings as directly involved in the general practice tolerated by it, and if the disappearance of Manfredo Velásquez can be
referred to and in the disappearance of Manfredo Velásquez. This evidence linked to that practice, the Commission's allegations will have been proven to
may be summarized as follows: the Court's satisfaction, so long as the evidence presented on both points
meets the standard of proof required in cases such as this.
a. The testimony purports to explain the organization and
functioning of the security forces accused of carrying out the specific 127. The Court must determine what the standards of proof should
acts and denies any knowledge of or personal involvement in the be in the instant case. Neither the Convention, the Statute of the Court nor
acts of the officers who testified; its Rules of Procedure speak to this matter. Nevertheless, international
jurisprudence has recognized the power of the courts to weigh the evidence
b. Some documents purport to show that no civil suit had freely, although it has always avoided a rigid rule regarding the amount of
been brought to establish a presumption of the death of Manfredo proof necessary to support the judgment (Cfr. Corfu Channel, Merits,
Velásquez; and, Judgment, I.C.J. Reports 1949; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits,
c. Other documents purport to prove that the Supreme Court Judgment, I.C.J. Reports 1986, paras. 29-30 and 59-60).
of Honduras received and acted upon some writs of habeas corpus
and that some of those writs resulted in the release of the persons 128. The standards of proof are less formal in an international legal
on whose behalf they were brought. proceeding that in a domestic one. The latter recognize different burdens of
proof, depending upon the nature, character and seriousness of the case.
121. The record contains no other direct evidence, such as expert
129. The Court cannot ignore the special seriousness of finding that more adequate presentation of its case.
a State Party to the Convention has carried out or has tolerated a practice of
disappearances in its territory. This requires the Court to apply a standard of 138. The manner in which the Government conducted its defense
proof which considers the seriousness of the charge and which, would have sufficed to prove many of the Commission's allegations by virtue
notwithstanding what has already been said, is capable of establishing the of the principle that the silence of the accused or elusive or ambiguous
truth of the allegations in a convincing manner. answers on its part may be interpreted as an acknowledgment of the truth of
the allegations, so long as the contrary is not indicated by the record or is not
130. The practice of international and domestic courts shows that compelled as a matter of law. This result would not hold under criminal law,
direct evidence, whether testimonial or documentary, is not the only type of which does not apply in the instant case (supra 134 and 135). The Court
evidence that may be legitimately considered in reaching a decision. tried to compensate for this procedural principle by admitting all the evidence
Circumstantial evidence, indicia, and presumptions may be considered, so offered, even if it was untimely, and by ordering the presentation of additional
long as they lead to conclusions consistent with the facts. evidence. This was done, of course, without prejudice to its discretion to
consider the silence or inaction of Honduras or to its duty to evaluate the
131. Circumstantial or presumptive evidence is especially important evidence as a whole.
in allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the kidnapping 139. In its own proceeding and without prejudice to its having
or the whereabouts and fate of the victim. considered other elements of proof, the Commission invoked Article 42 of its
Regulations, which reads as follows:
132. Since the Court is an international tribunal, it has its own
specialized procedures. All the elements of domestic legal procedures are The facts reported in the petition whose pertinent parts have been
therefore not automatically applicable. transmitted to the government of the State in reference shall be presumed to
be true if, during the maximum period set by the Commission under the
133. The above principle is generally valid in international provisions of Article 34 paragraph 5, the government has not provided the
proceedings, but is particularly applicable in human rights cases. pertinent information, as long as other evidence does not lead to a different
134. The international protection of human rights should not be
confused with criminal justice. States do not appear before the Court as Because the Government did not object here to the use of this legal
defendants in a criminal action. The objective of international human rights presumption in the proceedings before the Commission and since the
law is not to punish those individuals who are guilty of violations, but rather to Government fully participated in these proceedings, Article 42 is irrelevant
protect the victims and to provide for the reparation of damages resulting here.
from the acts of the States responsible.
135. In contrast to domestic criminal law, in proceedings to 140. In the instant case, the Court accepts the validity of the
determine human rights violations the State cannot rely on the defense that documents presented by the Commission and by Honduras, particularly
the complainant has failed to present evidence when it cannot be obtained because the parties did not oppose or object to those documents nor did
without the State's cooperation. they question their authenticity or veracity.

136. The State controls the means to verify acts occurring within its 141. During the hearings, the Government objected, under Article
territory. Although the Commission has investigatory powers, it cannot 37 of the Rules of Procedure, to the testimony of witnesses called by the
exercise them within a State's jurisdiction unless it has the cooperation of Commission. By decision of October 6, 1987, the Court rejected the
that State. challenge, holding as follows:

137. Since the Government only offered some documentary b. The objection refers to circumstances under which,
evidence in support of its preliminary objections, but none on the merits, the according to the Government, the testimony of these witnesses
Court must reach its decision without the valuable assistance of a more might not be objective.
active participation by Honduras, which might otherwise have resulted in a
c. It is within the Court's discretion, when rendering contain public and well-known facts which, as such, do not require proof;
judgment, to weigh the evidence. others are of evidentiary value, as has been recognized in international
jurisprudence (Military and Paramilitary Activities in and against
d. A violation of the human rights set out in the Convention is Nicaragua, supra 127, paras. 62-64), insofar as they textually reproduce
established by facts found by the Court, not by the method of proof. public statements, especially those of high-ranking members of the Armed
Forces, of the Government, or even of the Supreme Court of Honduras, such
f. When testimony is questioned, the challenging party has as some of those made by the President of the latter. Finally, others are
the burden of refuting that testimony. important as a whole insofar as they corroborate testimony regarding the
responsibility of the Honduran military and police for disappearances.
142. During cross-examination, the Government's attorneys
attempted to show that some witnesses were not impartial because of IX
ideological reasons, origin or nationality, family relations, or a desire to 147. The Court now turns to the relevant facts that it finds to have
discredit Honduras. They even insinuated that testifying against the State in been proven. They are as follows:
these proceedings was disloyal to the nation. Likewise, they cited criminal
records or pending charges to show that some witnesses were not a. During the period 1981 to 1984, 100 to 150 persons
competent to testify (supra 86, 88, 90, 92, 101, 110 and 116) disappeared in the Republic of Honduras, and many were never
heard from again (testimony of Miguel Angel Pavón Salazar, Ramón
143. It is true, of course, that certain factors may clearly influence a Custodio López, Efraín Díaz Arrivillaga, Florencio Caballero and
witness' truthfulness. However, the Government did not present any press clippings).
concrete evidence to show that the witnesses had not told the truth, but
rather limited itself to making general observations regarding their alleged b. Those disappearances followed a similar pattern,
incompetency or lack of impartiality. This is insufficient to rebut testimony beginning with the kidnapping of the victims by force, often in broad
which is fundamentally consistent with that of other witnesses. The Court daylight and in public places, by armed men in civilian clothes and
cannot ignore such testimony. disguises, who acted with apparent impunity and who used vehicles
without any official identification, with tinted windows and with false
144. Moreover, some of the Government's arguments are license plates or no plates (testimony of Miguel Angel Pavón
unfounded within the context of human rights law. The insinuation that Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga, Florencio
persons who, for any reason, resort to the Inter-American system for the Caballero and press clippings).
protection of human rights are disloyal to their country is unacceptable and
cannot constitute a basis for any penalty or negative consequence. Human c. It was public and notorious knowledge in Honduras that
rights are higher values that "are not derived from the fact that (an individual) the kidnappings were carried out by military personnel or the police,
is a national of a certain state, but are based upon attributes of his human or persons acting under their orders (testimony of Miguel Angel
personality" (American Declaration of the Rights and Duties of Man, Pavón Salazar, Ramón Custodio López, Efraín Díaz Arrivillaga,
Whereas clauses, and American Convention, Preamble). Florencio Caballero and press clippings).

145. Neither is it sustainable that having a criminal record or d. The disappearances were carried out in a systematic
charges pending is sufficient in and of itself to find that a witness is not manner, regarding which the Court considers the following
competent to testify in Court. As the Court ruled, in its decision of October 6, circumstances particularly relevant:
1987, in the instant case, under the American Convention on Human Rights,
it is impermissible to deny a witness, a priori, the possibility of testifying to i. The victims were usually persons whom Honduran officials
facts relevant to a matter before the Court, even if he has an interest in that considered dangerous to State security (testimony of
proceeding, because he has been prosecuted or even convicted under Miguel Angel Pavón Salazar, Ramón Custodio López,
internal laws. Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio Carías,
Milton Jiménez Puerto, René Velásquez Díaz, Inés
146. Many of the press clippings offered by the Commission cannot Consuelo Murillo, José Gonzalo Flores Trejo, Zenaida
be considered as documentary evidence as such. However, many of them Velásquez, César Augusto Murillo and press clippings). In
addition, the victims had usually been under surveillance victims or the location of their remains. The investigative
for long periods of time (testimony of Ramón Custodio committees created by the Government and the Armed
López and Florencio Caballero); Forces did not produce any results. The judicial
proceedings brought were processed slowly with a clear
ii. The arms employed were reserved for the official use of lack of interest and some were ultimately dismissed
the military and police, and the vehicles used had tinted (testimony of Inés Consuelo Murillo, José Gonzalo Flores
glass, which requires special official authorization. In Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio
some cases, Government agents carried out the Carías, Milton Jiménez Puerto, René Velásquez Díaz,
detentions openly and without any pretense or disguise; in Zenaida Velásquez, César Augusto Murillo and press
others, government agents had cleared the areas where clippings);
the kidnappings were to take place and, on at least one
occasion, when government agents stopped the e. On September 12, 1981, between 4:30 and 5:00 p.m.,
kidnappers they were allowed to continue freely on their several heavily-armed men in civilian clothes driving a white Ford
way after showing their identification (testimony of Miguel without license plates kidnapped Manfredo Velásquez from a parking
Angel Pavón Salazar, Ramón Custodio López and lot in downtown Tegucigalpa. Today, nearly seven years later, he
Florencio Caballero); remains disappeared, which creates a reasonable presumption that
he is dead (testimony of Miguel Angel Pavón Salazar, Ramón
iii. The kidnappers blindfolded the victims, took them to Custodio López, Zenaida Velásquez, Florencio Caballero, Leopoldo
secret, unofficial detention centers and moved them from Aguilar Villalobos and press clippings).
one center to another. They interrogated the victims and
subjected them to cruel and humiliating treatment and f. Persons connected with the Armed Forces or under its
torture. Some were ultimately murdered and their bodies direction carried out that kidnapping (testimony of Ramón Custodio
were buried in clandestine cemeteries (testimony of Miguel López, Zenaida Velásquez, Florencio Caballero, Leopoldo Aguilar
Angel Pavón Salazar, Ramón Custodio López, Florencio Villalobos and press clippings).
Caballero, René Velásquez Díaz, Inés Consuelo Murillo
and José Gonzalo Flores Trejo); g. The kidnapping and disappearance of Manfredo
Velásquez falls within the systematic practice of disappearances
iv. When queried by relatives, lawyers and persons or entities referred to by the facts deemed proved in paragraphs a-d. To wit:
interested in the protection of human rights, or by judges
charged with executing writs of habeas corpus, the i. Manfredo Velásquez was a student who was involved in
authorities systematically denied any knowledge of the activities the authorities considered "dangerous" to
detentions or the whereabouts or fate of the victims. That national security (testimony of Miguel Angel Pavón
attitude was seen even in the cases of persons who later Salazar, Ramón Custodio López and Zenaida Velásquez).
reappeared in the hands of the same authorities who had
systematically denied holding them or knowing their fate ii. The kidnapping of Manfredo Velásquez was carried out in
(testimony of Inés Consuelo Murillo, José Gonzalo Flores broad daylight by men in civilian clothes who used a
Trejo, Efraín Díaz Arrivillaga, Florencio Caballero, Virgilio vehicle without license plates.
Carías, Milton Jiménez Puerto, René Velásquez Díaz,
Zenaida Velásquez, César Augusto Murillo and press iii. In the case of Manfredo Velásquez, there were the same
clippings); type of denials by his captors and the Armed Forces, the
same omissions of the latter and of the Government in
v. Military and police officials as well as those from the investigating and revealing his whereabouts, and the same
Executive and Judicial Branches either denied the ineffectiveness of the courts where three writs of habeas
disappearances or were incapable of preventing or corpus and two criminal complaints were brought
investigating them, punishing those responsible, or helping (testimony of Miguel Angel Pavón Salazar, Ramón
those interested discover the whereabouts and fate of the Custodio López, Zenaida Velásquez, press clippings and
documentary evidence). 152. Within the inter-American system, the General Assembly of the
Organization of American States (OAS) and the Commission have
h. There is no evidence in the record that Manfredo repeatedly referred to the practice of disappearances and have urged that
Velásquez had disappeared in order to join subversive groups, other disappearances be investigated and that the practice be stopped (AG/RES.
than a letter from the Mayor of Langue, which contained rumors to 443 (IX-0/79) of October 31, 1979; AG/RES.510 (X-0/80) of November 27,
that effect. The letter itself shows that the Government associated 1980; AG/RES. 618 (XII-0/82) of November 20, 1982; AG/RES. 666 (XIII-
him with activities it considered a threat to national security. 0/83) of November 18, 1983; AG/RES. 742 (XIV-0/84) of November 17, 1984
However, the Government did not corroborate the view expressed in and AG/RES. 890 (XVII-0/87) of November 14, 1987; Inter-American
the letter with any other evidence. Nor is there any evidence that he Commission on Human Rights: Annual Report 1978, pp. 24-27; Annual
was kidnapped by common criminals or other persons unrelated to Report, 1980-1981, pp. 113-114; Annual Report, 1982-1983, pp. 46-67;
the practice of disappearances existing at that time. Annual Report, 1985-1986, pp. 37-40; Annual Report, 1986-1987, pp. 277-
284 and in many of its Country Reports, such as OEA/Ser. L/V/II.49, doc. 19,
148. Based upon the above, the Court finds that the following facts 1980 (Argentina); OEA/Ser. L/V/II.66, doc. 17, 1985 (Chile) and OEA/Ser.
have been proven in this proceeding: (1) a practice of disappearances L/V/II.66, doc. 16, 1985 (Guatemala)).
carried out or tolerated by Honduran officials existed between 1981 and
1984; (2) Manfredo Velásquez disappeared at the hands of or with the 153. International practice and doctrine have often categorized
acquiescence of those officials within the framework of that practice; and (3) disappearances as a crime against humanity, although there is no treaty in
the Government of Honduras failed to guarantee the human rights affected force which is applicable to the States Parties to the Convention and which
by that practice. uses this terminology (Inter-American Yearbook on Human Rights, 1985, pp.
368, 686 and 1102). The General Assembly of the OAS has resolved that it
X "is an affront to the conscience of the hemisphere and constitutes a crime
149. Disappearances are not new in the history of human rights against humanity" (AG/RES. 666, supra) and that "this practice is cruel and
violations. However, their systematic and repeated nature and their use not inhuman, mocks the rule of law, and undermines those norms which
only for causing certain individuals to disappear, either briefly or permanently, guarantee protection against arbitrary detention and the right to personal
but also as a means of creating a general state of anguish, insecurity and security and safety" (AG/RES. 742, supra).
fear, is a recent phenomenon. Although this practice exists virtually
worldwide, it has occurred with exceptional intensity in Latin American in the 154. Without question, the State has the right and duty to guarantee
last few years. its security. It is also indisputable that all societies suffer some deficiencies
in their legal orders. However, regardless of the seriousness of certain
150. The phenomenon of disappearances is a complex form of actions and the culpability of the perpetrators of certain crimes, the power of
human rights violation that must be understood and confronted in an integral the State is not unlimited, nor may the State resort to any means to attain its
fashion. ends. The State is subject to law and morality. Disrespect for human dignity
cannot serve as the basis for any State action.
151. The establishment of a Working Group on Enforced or
Involuntary Disappearances of the United Nations Commission on Human 155. The forced disappearance of human beings is a multiple and
Rights, by Resolution 20 (XXXVI) of February 29, 1980, is a clear continuous violation of many rights under the Convention that the States
demonstration of general censure and repudiation of the practice of Parties are obligated to respect and guarantee. The kidnapping of a person
disappearances, which had already received world attention at the UN is an arbitrary deprivation of liberty, an infringement of a detainee's right to be
General Assembly (Resolution 33/173 of December 20, 1978), the Economic taken without delay before a judge and to invoke the appropriate procedures
and Social Council (Resolution 1979/38 of May 10, 1979) and the to review the legality of the arrest, all in violation of Article 7 of the
Subcommission for the Prevention of Discrimination and Protection of Convention which recognizes the right to personal liberty by providing that:
Minorities (Resolution 5B (XXXII) of September 5, 1979). The reports of the
rapporteurs or special envoys of the Commission on Human Rights show 1. Every person has the right to personal liberty and security.
concern that the practice of disappearances be stopped, the victims
reappear and that those responsible be punished. 2. No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the constitution
of the State Party concerned or by a law established pursuant thereto. execution without trial, followed by concealment of the body to eliminate any
material evidence of the crime and to ensure the impunity of those
3. No one shall be subject to arbitrary arrest or imprisonment. responsible. This is a flagrant violation of the right to life, recognized in
Article 4 of the Convention, the first clause of which reads as follows:
4. Anyone who is detained shall be informed of the reasons for 1. Every person has the right to have his life respected. This
his detention and shall be promptly notified of the charge or charges against right shall be protected by law and, in general, from the moment of
him. conception. No one shall be arbitrarily deprived of his life.

5. Any person detained shall be brought promptly before a judge 158. The practice of disappearances, in addition to directly violating
or other officer authorized by law to exercise judicial power and shall be many provisions of the Convention, such as those noted above, constitutes a
entitled to trial within a reasonable time or to be released without prejudice to radical breach of the treaty in that it shows a crass abandonment of the
the continuation of the proceedings. His release may be subject to values which emanate from the concept of human dignity and of the most
guarantees to assure his appearance for trial. basic principles of the inter-American system and the Convention. The
existence of this practice, moreover, evinces a disregard of the duty to
6. Anyone who is deprived of his liberty shall be entitled to organize the State in such a manner as to guarantee the rights recognized in
recourse to a competent court, in order that the court may decide without the Convention, as set out below.
delay on the lawfulness of his arrest or detention and order his release if the
arrest or detention is unlawful. In States Parties whose laws provide that XI
anyone who believes himself to be threatened with deprivation of his liberty 159. The Commission has asked the Court to find that Honduras
is entitled to recourse to a competent court in order that it may decide on the has violated the rights guaranteed to Manfredo Velásquez by Articles 4, 5
lawfulness of such threat, this remedy may not be restricted or abolished. and 7 of the Convention. The Government has denied the charges and
The interested party or another person in his behalf is entitled to seek these seeks to be absolved.
160. This requires the Court to examine the conditions under which
156. Moreover, prolonged isolation and deprivation of a particular act, which violates one of the rights recognized by the
communication are in themselves cruel and inhuman treatment, harmful to Convention, can be imputed to a State Party thereby establishing its
the psychological and moral integrity of the person and a violation of the right international responsibility.
of any detainee to respect for his inherent dignity as a human being. Such
treatment, therefore, violates Article 5 of the Convention, which recognizes 161. Article 1 (1) of the Convention provides:
the right to the integrity of the person by providing that:
Article 1. Obligation to Respect Rights
1. Every person has the right to have his physical, mental, and
moral integrity respected. 1. The States Parties to this Convention undertake to
respect the rights and freedoms recognized herein and to ensure to
2. No one shall be subjected to torture or to cruel, inhuman, or all persons subject to their jurisdiction the free and full exercise of
degrading punishment or treatment. All persons deprived of their liberty shall those rights and freedoms, without any discrimination for reasons of
be treated with respect for the inherent dignity of the human person. race, color, sex, language, religion, political or other opinion, national
or social origin, economic status, birth, or any other social condition.
In addition, investigations into the practice of disappearances and
the testimony of victims who have regained their liberty show that those who 162. This article specifies the obligation assumed by the States
are disappeared are often subjected to merciless treatment, including all Parties in relation to each of the rights protected. Each claim alleging that
types of indignities, torture and other cruel, inhuman and degrading one of those rights has been infringed necessarily implies that Article 1 (1) of
treatment, in violation of the right to physical integrity recognized in Article 5 the Convention has also been violated.
of the Convention.
163. The Commission did not specifically allege the violation of
157. The practice of disappearances often involves secret Article 1 (1) of the Convention, but that does not preclude the Court from
applying it. The precept contained therein constitutes the generic basis of
the protection of the rights recognized by the Convention and would be 167. The obligation to ensure the free and full exercise of human
applicable, in any case, by virtue of a general principle of law, iura novit rights is not fulfilled by the existence of a legal system designed to make it
curia, on which international jurisprudence has repeatedly relied and under possible to comply with this obligation --it also requires the government to
which a court has the power and the duty to apply the juridical provisions conduct itself so as to effectively ensure the free and full exercise of human
relevant to a proceeding, even when the parties do not expressly invoke rights.
them ("Lotus", Judgment No. 9, 1927, P.C.I.J., Series A No. 10, p. 31 and
Eur. Court H.R., Handyside Case, Judgment of 7 December 1976, Series A 168. The obligation of the States is, thus, much more direct than
No. 24, para. 41). that contained in Article 2, which reads:

164. Article 1 (1) is essential in determining whether a violation of Article 2. Domestic Legal Effects
the human rights recognized by the Convention can be imputed to a State
Party. In effect, that article charges the States Parties with the fundamental Where the exercise of any of the rights or freedoms referred
duty to respect and guarantee the rights recognized in the Convention. Any to in Article 1 is not already ensured by legislative or other
impairment of those rights which can be attributed under the rules of provisions, the States Parties undertake to adopt, in accordance with
international law to the action or omission of any public authority constitutes their constitutional processes and the provisions of this Convention,
an act imputable to the State, which assumes responsibility in the terms such legislative or other measures as may be necessary to give
provided by the Convention. effect to those rights or freedoms.

165. The first obligation assumed by the States Parties under Article 169. According to Article 1 (1), any exercise of public power that
1 (1) is "to respect the rights and freedoms" recognized by the Convention. violates the rights recognized by the Convention is illegal. Whenever a State
The exercise of public authority has certain limits which derive from the fact organ, official or public entity violates one of those rights, this constitutes a
that human rights are inherent attributes of human dignity and are, therefore, failure of the duty to respect the rights and freedoms set forth in the
superior to the power of the State. On another occasion, this court stated: Convention.

The protection of human rights, particularly the civil and political 170. This conclusion is independent of whether the organ or official
rights set forth in the Convention, is in effect based on the affirmation of the has contravened provisions of internal law or overstepped the limits of his
existence of certain inviolable attributes of the individual that cannot be authority: under international law a State is responsible for the acts of its
legitimately restricted through the exercise of governmental power. There agents undertaken in their official capacity and for their omissions, even
are individual domains that are beyond the reach of the State or to which the when those agents act outside the sphere of their authority or violate internal
State has but limited access. Thus, the protection of human rights must law.
necessarily comprise the concept of the restriction of the exercise of state
power (The Word "Laws" in Article 30 of the American Convention on 171. This principle suits perfectly the nature of the Convention,
Human Rights, Advisory Opinion OC-6/86 of May 9, 1986. Series A No. 6, which is violated whenever public power is used to infringe the rights
para 21). recognized therein. If acts of public power that exceed the State's authority
or are illegal under its own laws were not considered to compromise that
166. The second obligation of the States Parties is to "ensure" the State's obligations under the treaty, the system of protection provided for in
free and full exercise of the rights recognized by the Convention to every the Convention would be illusory.
person subject to its jurisdiction. This obligation implies the duty of States
Parties to organize the governmental apparatus and, in general, all the 172. Thus, in principle, any violation of rights recognized by the
structures through which public power is exercised, so that they are capable Convention carried out by an act of public authority or by persons who use
of juridically ensuring the free and full enjoyment of human rights. As a their position of authority is imputable to the State. However, this does not
consequence of this obligation, the States must prevent, investigate and define all the circumstances in which a State is obligated to prevent,
punish any violation of the rights recognized by the Convention and, investigate and punish human rights violations, nor all the cases in which the
moreover, if possible attempt to restore the right violated and provide State might be found responsible for an infringement of those rights. An
compensation as warranted for damages resulting from the violation. illegal act which violates human rights and which is initially not directly
imputable to a State (for example, because it is the act of a private person or allows private persons or groups to act freely and with impunity to the
because the person responsible has not been identified) can lead to detriment of the rights recognized by the Convention.
international responsibility of the State, not because of the act itself, but
because of the lack of due diligence to prevent the violation or to respond to 177. In certain circumstances, it may be difficult to investigate acts
it as required by the Convention. that violate an individual's rights. The duty to investigate, like the duty to
prevent, is not breached merely because the investigation does not produce
173. Violations of the Convention cannot be founded upon rules a satisfactory result. Nevertheless, it must be undertaken in a serious
that take psychological factors into account in establishing individual manner and not as a mere formality preordained to be ineffective. An
culpability. For the purposes of analysis, the intent or motivation of the agent investigation must have an objective and be assumed by the State as its own
who has violated the rights recognized by the Convention is irrelevant --the legal duty, not as a step taken by private interests that depends upon the
violation can be established even if the identity of the individual perpetrator is initiative of the victim or his family or upon their offer of proof, without an
unknown. What is decisive is whether a violation of the rights recognized by effective search for the truth by the government. This is true regardless of
the Convention has occurred with the support or the acquiescence of the what agent is eventually found responsible for the violation. Where the acts
government, or whether the State has allowed the act to take place without of private parties that violate the Convention are not seriously investigated,
taking measures to prevent it or to punish those responsible. Thus, the those parties are aided in a sense by the government, thereby making the
Court's task is to determine whether the violation is the result of a State's State responsible on the international plane.
failure to fulfill its duty to respect and guarantee those rights, as required by
Article 1 (1) of the Convention. 178. In the instant case, the evidence shows a complete inability of
the procedures of the State of Honduras, which were theoretically adequate,
174. The State has a legal duty to take reasonable steps to prevent to carry out an investigation into the disappearance of Manfredo Velásquez,
human rights violations and to use the means at its disposal to carry out a and of the fulfillment of its duties to pay compensation and punish those
serious investigation of violations committed within its jurisdiction, to identify responsible, as set out in Article 1 (1) of the Convention.
those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation. 179 As the Court has verified above, the failure of the judicial
system to act upon the writs brought before various tribunals in the instant
175. This duty to prevent includes all those means of a legal, case has been proven. Not one writ of habeas corpus was processed. No
political, administrative and cultural nature that promote the protection of judge has access to the places where Manfredo Velásquez might have been
human rights and ensure that any violations are considered and treated as detained. The criminal complaint was dismissed.
illegal acts, which, as such, may lead to the punishment of those responsible
and the obligation to indemnify the victims for damages. It is not possible to 180. Nor did the organs of the Executive Branch carry out a serious
make a detailed list of all such measures, since they vary with the law and investigation to establish the fate of Manfredo Velásquez. There was no
the conditions of each State Party. Of course, while the State is obligated to investigation of public allegations of a practice of disappearances nor a
prevent human rights abuses, the existence of a particular violation does not, determination of whether Manfredo Velásquez had been a victim of that
in itself, prove the failure to take preventive measures. On the other hand, practice. The Commission's requests for information were ignored to the
subjecting a person to official, repressive bodies that practice torture and point that the Commission had to presume, under Article 42 of its
assassination with impunity is itself a breach of the duty to prevent violations Regulations, that the allegations were true. The offer of an investigation in
of the rights to life and physical integrity of the person, even if that particular accord with Resolution 30/83 of the Commission resulted in an investigation
person is not tortured or assassinated, or if those facts cannot be proven in a by the Armed Forces, the same body accused of direct responsibility for the
concrete case. disappearances. This raises grave questions regarding the seriousness of
the investigation. The Government often resorted to asking relatives of the
176. The State is obligated to investigate every situation involving a victims to present conclusive proof of their allegations even though those
violation of the rights protected by the Convention. If the State apparatus allegations, because they involved crimes against the person, should have
acts in such a way that the violation goes unpunished and the victim's full been investigated on the Government's own initiative in fulfillment of the
enjoyment of such rights is not restored as soon as possible, the State has State's duty to ensure public order. This is especially true when the
failed to comply with its duty to ensure the free and full exercise of those allegations refer to a practice carried out within the Armed Forces, which,
rights to the persons within its jurisdiction. The same is true when the State because of its nature, is not subject to private investigations. No proceeding
was initiated to establish responsibility for the disappearance of Manfredo without legal cause and without a determination of the lawfulness of his
Velásquez and apply punishment under internal law. All of the above leads detention by a judge or competent tribunal. Those acts directly violate the
to the conclusion that the Honduran authorities did not take effective action right to personal liberty recognized by Article 7 of the Convention (supra
to ensure respect for human rights within the jurisdiction of that State as 155) and are a violation imputable to Honduras of the duties to respect and
required by Article 1 (1) of the Convention. ensure that right under Article 1 (1).

181. The duty to investigate facts of this type continues as long as 187. The disappearance of Manfredo Velásquez violates the right to
there is uncertainty about the fate of the person who has disappeared. Even personal integrity recognized by Article 5 of the Convention (supra 156).
in the hypothetical case that those individually responsible for crimes of this First, the mere subjection of an individual to prolonged isolation and
type cannot be legally punished under certain circumstances, the State is deprivation of communication is in itself cruel and inhuman treatment which
obligated to use the means at its disposal to inform the relatives of the fate of harms the psychological and moral integrity of the person, and violates the
the victims and, if they have been killed, the location of their remains. right of every detainee under Article 5 (1) and 5 (2) to treatment respectful of
his dignity. Second, although it has not been directly shown that Manfredo
182. The Court is convinced, and has so found, that the Velásquez was physically tortured, his kidnapping and imprisonment by
disappearance of Manfredo Velásquez was carried out by agents who acted governmental authorities, who have been shown to subject detainees to
under cover of public authority. However, even had that fact not been indignities, cruelty and torture, constitute a failure of Honduras to fulfill the
proven, the failure of the State apparatus to act, which is clearly proven, is a duty imposed by Article 1 (1) to ensure the rights under Article 5 (1) and 5 (2)
failure on the part of Honduras to fulfill the duties it assumed under Article 1 of the Convention. The guarantee of physical integrity and the right of
(1) of the Convention, which obligated it to ensure Manfredo Velásquez the detainees to treatment respectful of their human dignity require States
free and full exercise of his human rights. Parties to take reasonable steps to prevent situations which are truly harmful
to the rights protected.
183. The Court notes that the legal order of Honduras does not
authorize such acts and that internal law defines them as crimes. The Court 188. The above reasoning is applicable to the right to life
also recognizes that not all levels of the Government of Honduras were recognized by Article 4 of the Convention (supra 157). The context in which
necessarily aware of those acts, nor is there any evidence that such acts the disappearance of Manfredo Velásquez occurred and the lack of
were the result of official orders. Nevertheless, those circumstances are knowledge seven years later about his fate create a reasonable presumption
irrelevant for the purposes of establishing whether Honduras is responsible that he was killed. Even if there is a minimal margin of doubt in this respect,
under international law for the violations of human rights perpetrated within it must be presumed that his fate was decided by authorities who
the practice of disappearances. systematically executed detainees without trial and concealed their bodies in
order to avoid punishment. This, together with the failure to investigate, is a
184. According to the principle of the continuity of the State in violation by Honduras of a legal duty under Article 1 (1) of the Convention to
international law, responsibility exists both independently of changes of ensure the rights recognized by Article 4 (1). That duty is to ensure every
government over a period of time and continuously from the time of the act person subject to its jurisdiction the inviolability of the right to life and the
that creates responsibility to the time when the act is declared illegal. The right not to have one's life taken arbitrarily. These rights imply an obligation
foregoing is also valid in the area of human rights although, from an ethical on the part of States Parties to take reasonable steps to prevent situations
or political point of view, the attitude of the new government may be much that could result in the violation of that right.
more respectful of those rights than that of the government in power when
the violations occurred. XII
189. Article 63 (1) of the Convention provides:
185. The Court, therefore, concludes that the facts found in this
proceeding show that the State of Honduras is responsible for the involuntary If the Court finds that there has been a violation of a right or
disappearance of Angel Manfredo Velásquez Rodríguez. Thus, Honduras freedom protected by this Convention, the Court shall rule that the
has violated Articles 7, 5 and 4 of the Convention. injured party be ensured the enjoyment of his right or freedom that
was violated. It shall also rule, if appropriate, that the consequences
186. As a result of the disappearance, Manfredo Velásquez was the of the measure or situation that constituted the breach of such right
victim of an arbitrary detention, which deprived him of his physical liberty or freedom be remedied and that fair compensation be paid to the
injured party. ensure the right to humane treatment set forth in Article 5 of the Convention,
read in conjunction with Article 1 (1) thereof.
Clearly, in the instant case the Court cannot order that the victim be
guaranteed the enjoyment of the rights or freedoms violated. The Court, Unanimously, 4. Declares that Honduras has
however, can rule that the consequences of the breach of the rights be violated, in the case of Angel Manfredo Velásquez
remedied and that just compensation be paid.
Rodríguez, its obligation to ensure the right to life set
190. During this proceeding the Commission requested the forth in Article 4 of the Convention, read in conjunction
payment of compensation, but did not offer evidence regarding the amount of with Article 1 (1) thereof.
damages or the manner of payment. Neither did the parties discuss these
matters. Unanimously, 5. Decides that Honduras is hereby required to pay
fair compensation to the next-of-kin of the victim.
191. The Court believes that the parties can agree on the damages.
If an agreement cannot be reached, the Court shall award an amount. The By six votes to one, 6. Decides that the form and amount of such
case shall, therefore, remain open for that purpose. The Court reserves the compensation, failing agreement between Honduras and the Commission
right to approve the agreement and, in the event no agreement is reached, to within six months of the date of this judgment, shall be settled by the Court
set the amount and order the manner of payment. and, for that purpose, retains jurisdiction of the case. Judge Rodolfo E. Piza
E. dissenting.
192. The Rules of Procedure establish the legal procedural
relations among the Commission, the State of States Parties in the case and Unanimously, 7. Decides that the agreement on the form and
the Court itself, which continue in effect until the case is no longer before the amount of the compensation shall be approved by the Court.
Court. As the case is still before the Court, the Government and the
Commission should negotiate the agreement referred to in the preceding Unanimously, 8. Does not find it necessary to render a decision
paragraph. The recipients of the award of damages will be the next-of-kin of concerning costs.
the victim. This does not in any way imply a ruling on the meaning of the
word "parties" in any other context under the Convention or the rules Done in Spanish and in English, the Spanish text being authentic, at
pursuant thereto. the seat of the Court in San José, Costa Rica, this twenty-ninth day of July,
193. With no pleading to support an award of costs, it is not proper
for the Court to rule on them (Art. 45 (1), Rules of Procedure).


Unanimously, 1. Rejects the preliminary objection interposed by
the Government of Honduras alleging the inadmissibility of the case for the
failure to exhaust domestic legal remedies.

Unanimously, 2. Declares that Honduras has violated, in the case
of Angel Manfredo Velásquez Rodríguez, its obligations to respect and to
ensure the right to personal liberty set forth in Article 7 of the Convention,
read in conjunction with Article 1 (1) thereof.

Unanimously, 3. Declares that Honduras has violated, in the case
of Angel Manfredo Velásquez Rodríguez, its obligations to respect and to